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Further Reading

Two Missouri lawyers have sued the governor’s office over its use of Confide, an ephemeral messaging mobile app, which they say is in violation of state public records law.

The two men are set to appear before a county judge on Friday to ask for a temporary restraining order that would bar current and future use of such apps by the governor and his staff. Lawyers representing Governor Eric Greitens say that such a move is unwarranted.

Confide, like Signal and other popular encrypted-messaging apps, auto-deletes messages after a certain period of time, making automated record-keeping of those messages very difficult, if not impossible. Use of such apps by public employees for official business is almost certain to run afoul of transparency laws.

Late last year, after reporting by the Kansas City Starrevealed the use of Confide by Greitens and several members of his staff, the two attorneys, Mark Pedroli and Ben Sansone, filed a public records request to learn more. The same day the lawsuit was filed, the Missouri Attorney General’s Office also opened an official investigation into the issue.

By early January, Sarah Madden, a special counsel for Greitens, responded that it would take time, perhaps up to 20 days, to provide a "response or a time and a cost estimate."

This Missouri suit, Sansone v. Greitens, appears to be one of the first, if not the first such lawsuit involving a state-level government agency and its alleged use of such a messaging system.

"You can't have civil liberties if you don't know what the government is doing with regard to the Fourth Amendment," Mark Pedroli, the lawyer representing Sansone, told Ars. "There [are] people who are Second Amendment people who think the government maintains a gun owner list and various things. Getting access to those documents alleviates suspicion and paranoia and tells you the truth. It's wildly important that government officials not communicate through ephemeral communication devices. We need a paper trail. That's what we want."

Greitens has been accused of secrecy previously: in September, his office refused to disclose the number of users he had blocked on social media.

The Starreported that Greitens has "displayed a penchant for secrecy that alarms open-government advocates" over lobbyist donations and other issues.

As the St. Louis Post-Dispatchreported, on January 25, Greitens' office formally refused Pedroli's Sunshine Act request to find out when Confide or any similar app was downloaded onto government phones. Instead, the governor's office cited a state secrecy law normally invoked in terrorist cases.

Parker Briden, a spokesman from Greitens' office, did not respond to Ars' request for comment.

Just the facts, ma’am

Further Reading

Gabriel Gore, a lawyer representing Greitens, said in a Tuesday court filing that the activist St. Louis County lawyers have no standing to bring the case in the first place as they have not been harmed by the governor's actions. He also asserts that the allegations are based on "pure speculation." Further, Gore argued that preventing the use of Confide would "run afoul of these employees' First Amendment right to freedom of speech."

Even if the temporary restraining order is not granted on Friday, the case will continue. Pedroli said that he anticipated his side would "win under the laws as they are."

However, Sandy Davidson, a law and journalism professor at the University of Missouri, told Ars that there aren't "well-developed facts." It's still not clear, she noted, whether the governor and his staff are still communicating over Confide.

"So if the office is continuing to use Confide, you have violation after violation and no way to recoup the information," she said. "It evaporates. That's the purpose. It's hard to establish a record—there is no record to evaluate. Stopping it at the get-go may be a wise move."

But, she warned: "If they're not using it, then a temporary restraining order has nothing to operate on."

Both Confide and Signal were also reportedly used in the Trump White House before then-Press Secretary Sean Spicer banned them in February 2017, saying that the apps likely were not compatible with the Presidential Records Act.

CREW, an activist group, currently has a lawsuit pending in federal court over this exact issue. Jordan Libowitz, a CREW spokesman, told Ars he was unaware of any other similar lawsuits over ephemeral messaging besides his group's.

"The idea that you should be able to communicate with your staff on something that's inherently built to disappear from your comms is anathema to any sense of public trust in whether you are behaving the way that you would expect a public servant to behave," Alex Howard, the deputy director of the Sunlight Foundation, a Washington, DC-based transparency advocacy group, told Ars.

UPDATE 5:31pm ET: According to the Kansas City Star, several of Greitens' staff seem to have deleted their accounts.

"They are no longer listed on the app as being connected to the staff members’ phone numbers," the newspaper wrote. "It’s unclear when the accounts vanished. The governor’s office did not respond to requests for comment. Greitens still has an account, as do Austin Chambers, who runs the governor’s political nonprofit, and Jimmy Soni, the governor’s former communications adviser who remains on Greitens’ campaign payroll."

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Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar

77 Reader Comments

How is banning people from using a particular messaging platform a freedom of speech issue? No one is saying they can't speak about what they want to, they are saying they can't speak on a platform that deletes their messages...

Further, Gore argued that preventing use of Confide would "run afoul of these employees' First Amendment right to freedom of speech."

Wow, what? Aren't these "employees" acting AS the government and required by regulations of the government to keep records? How can they use the First Amendment protections against Government censorship to defend the deletion of Government communications?

I really do love that “we can’t tell you what we’re doing, but you can’t sue us because you haven’t been harmed in any way, trust us,” position that government officials keep taking.

If he is invoking a secrecy law for terrorism, then that really shouldn’t be in an ephemeral message system. I mean, they will need all the information when the suspects go to trial, right? Oh, never mind. I suppose they aren’t being harmed in any way either-on US soil.

In short, no, I don’t trust you. What is that line police and DAs love to toss out about our privacy? Something like “if you’re not doing anything wrong, you don’t have anything to hide?” Protect everyone’s privacy, or don’t expect us to protect yours.

In my opinion, the problem with ephemeral messages is that they only provide pseudo-confidentiality. If someone really wants to record a message they receive, they'll probably find the means to do so. And more likely than not, the reproduction of the original message will be stored in a place much less secure than the original app. I believe that's the reason why messengers (e.g., Threema) don't offer this kind of functionality. Let's say I take a screenshot of an ephemeral message on my iPhone, where iCould is activated and the screenshot immediately gets transmitted to Apple servers. That's hardly ideal.

How is banning people from using a particular messaging platform a freedom of speech issue? No one is saying they can't speak about what they want to, they are saying they can't speak on a platform that deletes their messages...

It comes down to whether a government official has a Right to privacy. Are they not permitted to use these apps for personal use, just because of their job?

EDIT: just to clarify, if you agree that they have the right to privacy in personal matters, but not public matters...how do you determine whether they're following those guidelines? You'd have to violate their personal rights in order to verify they're not violating the guidelines.

However, if you agree that they give up their right to personal privacy based on their job....well...that opens a can of worms. Do police officers also give up their personal rights? Teachers?

It comes down to whether a government official has a Right to privacy. Are they not permitted to use these apps for personal use, just because of their job?

I would argue that they have no expectation of privacy in a government issued device. So yes, they cannot use these apps on government issued devices or for government purposes.

As private citizens, they have every right to use anything they want (even illegal apps if they want to take that risk).

Oh and I should also add, if you do both personal and government business on the same device, it's entirely your responsibility to keep accurate records of government business failing which you should be prosecuted.

What can we do to harass/discredit these haters? Can someone run their license plates and track them where ever they go. See if they have a mistress or visit gay nightclubs. Also make sure they have some "random" encounters with police. Oh and do the same for their extended family. And make sure to update that secret gun ownership list. I want these haters' guns to be the first ones we confiscate.

Gabriel Gore to judge

Quote:

lawyers have no standing to bring the case in the first place as they have not been harmed by the governor's actions

---

*Totally made up conversation to sarcastically make a point about how the evidence of harm could be hidden with emphemeral messaging apps.

How is banning people from using a particular messaging platform a freedom of speech issue? No one is saying they can't speak about what they want to, they are saying they can't speak on a platform that deletes their messages...

It comes down to whether a government official has a Right to privacy. Are they not permitted to use these apps for personal use, just because of their job?

EDIT: just to clarify, if you agree that they have the right to privacy in personal matters, but not public matters...how do you determine whether they're following those guidelines? You'd have to violate their personal rights in order to verify they're not violating the guidelines.

However, if you agree that they give up their right to personal privacy based on their job....well...that opens a can of worms. Do police officers also give up their personal rights? Teachers?

It comes down to whether a government official has a Right to privacy. Are they not permitted to use these apps for personal use, just because of their job?

I would argue that they have no expectation of privacy in a government issued device. So yes, they cannot use these apps on government issued devices or for government purposes.

As private citizens, they have every right to use anything they want (even illegal apps if they want to take that risk).

Oh and I should also add, if you do both personal and government business on the same device, it's entirely your responsibility to keep accurate records of government business failing which you should be prosecuted.

I see someone downvoted you, and I'd be curious to get their take on why.

As you point out, this isn't about his use of Confide on a personal device, but on government-owned and issued equipment. He has installed an ephemeral messaging application on a device intended for official use only.

All this will accomplish is that if they win and he has to stop using the app, he will fall back to making voice calls. And there will be just as little record of conversations.

I understand the wish/need for transparency, but this lawsuit will not bring that.

I agree that falling back to voice calls or even face to face conversations at the water cooler would be impossible to track, and that you can't be 100% perfect on this.

However doing so then raises the bar for performing extended, co-ordinated nefarious acts, and that is a good thing™. Also in the case of the phone calls there will be a log of who called who that should be in the public record (but I am not a lawyer - so I am guessing here)

It comes down to whether a government official has a Right to privacy. Are they not permitted to use these apps for personal use, just because of their job?

I would argue that they have no expectation of privacy in a government issued device. So yes, they cannot use these apps on government issued devices or for government purposes.

As private citizens, they have every right to use anything they want (even illegal apps if they want to take that risk).

Oh and I should also add, if you do both personal and government business on the same device, it's entirely your responsibility to keep accurate records of government business failing which you should be prosecuted.

I see someone downvoted you, and I'd be curious to get their take on why.

As you point out, this isn't about his use of Confide on a personal device, but on government-owned and issued equipment. He has installed an ephemeral messaging application on a device intended for official use only.

Corruption can continue to happen as has been pointed out and should be apparent to anyone with a brain. This however, won't deter the down voters whose cleverness eclipses everyone else.

You have the important part in this software being installed on a government device provided and certainly paid for for the use of.... government business. To make any claim to privacy or the old Republican* standby of 'free speech' (whose definition and intent has been perverted to all ends), is to show either severe ignorance of public office or an admission of guilt on corruption. That is, an honest person interested in fair governing would not be seeking to hide things done in an absolutely clear context of public office. Their own personal phone, etc. Sure, do what you want.

*It comes as no surprise this is a Republican administration. That's an immediate red flag for corruption and contempt of public office as history has proven time and again.

** Edited because phone autocorrect doesn't understand the English language.

All this will accomplish is that if they win and he has to stop using the app, he will fall back to making voice calls. And there will be just as little record of conversations.

I understand the wish/need for transparency, but this lawsuit will not bring that.

I agree that falling back to voice calls or even face to face conversations at the water cooler would be impossible to track, and that you can't be 100% perfect on this.

However doing so then raises the bar for performing extended, co-ordinated nefarious acts, and that is a good thing™. Also in the case of the phone calls there will be a log of who called who that should be in the public record (but I am not a lawyer - so I am guessing here)

You are correct in that there would be a record of there having been a call. But the problem remains that this was used between people that have perfectly good reasons to communicate with each other. So a call record will not be damning information and what you really want is the content of the call.

And considering their positions they could make a case that they need secure scrambled phones so forget about wiretapping the calls too.

It comes down to whether a government official has a Right to privacy. Are they not permitted to use these apps for personal use, just because of their job?

I would argue that they have no expectation of privacy in a government issued device. So yes, they cannot use these apps on government issued devices or for government purposes.

As private citizens, they have every right to use anything they want (even illegal apps if they want to take that risk).

Oh and I should also add, if you do both personal and government business on the same device, it's entirely your responsibility to keep accurate records of government business failing which you should be prosecuted.

Bingo. Ban the apps on government issued devices. If it's found they use it on personal phones and for government purposes, turf them out of office. Press charges if applicable.

What can we do to harass/discredit these haters? Can someone run their license plates and track them where ever they go. See if they have a mistress or visit gay nightclubs. Also make sure they have some "random" encounters with police. Oh and do the same for their extended family. And make sure to update that secret gun ownership list. I want these haters' guns to be the first ones we confiscate.

Gabriel Gore to judge

Quote:

lawyers have no standing to bring the case in the first place as they have not been harmed by the governor's actions

---

*Totally made up conversation to sarcastically make a point about how the evidence of harm could be hidden with emphemeral messaging apps.

Interesting double edged sword .... someone fakes a Confide screen with the exact message you show, takes a photo of it ala how one captures SnapChat screens for future use, then releases that photo (with spoofed metadata) as leaked information. Confide deletes the original, as the target of that malfeasance, how do you prove you did NOT send that message? Careful what you ask for and all that, Mr Governor.

Being a Missourian, the Greitens issue keeps coming up. He's under fire for several things.

The issue many (myself included) is that hes using the app in an official capacity to communicate with staff, and those communications since they are for a public office need to be recorded.

Now if he used it for personal use (since he likes to have affairs) I could care less if he uses that app. (not supporting or condoning cheating).

The guy is just nothing but trouble, and there is very nearly nothing a governor of a state needs to do to hide a communication from the public (its not like hes negotiating a sensitive item with a foreign government, even then it would at least be recorded somewhere).

I suspect he will not get re-elected and rightfully so. He is an embarrassment for our state.

All this will accomplish is that if they win and he has to stop using the app, he will fall back to making voice calls. And there will be just as little record of conversations.

I understand the wish/need for transparency, but this lawsuit will not bring that.

I agree that falling back to voice calls or even face to face conversations at the water cooler would be impossible to track, and that you can't be 100% perfect on this.

However doing so then raises the bar for performing extended, co-ordinated nefarious acts, and that is a good thing™. Also in the case of the phone calls there will be a log of who called who that should be in the public record (but I am not a lawyer - so I am guessing here)

You are correct in that there would be a record of there having been a call. But the problem remains that this was used between people that have perfectly good reasons to communicate with each other. So a call record will not be damning information and what you really want is the content of the call.

And considering their positions they could make a case that they need secure scrambled phones so forget about wiretapping the calls too.

While the content would be nice to have, just the record of the calls themselves can be enough.

Anecdote from my brother's work that he once told me. Years ago the company he was working for decided to try and cut costs. Up until then they just had a monthly, single line phone bill for the total $$$ amount. The phone company offered the option of a detailed call log, so they decided to try that out to see if there was any way they could optimize their communications. What they discovered in the log was that almost every day after 5pm a multi-hour phone call was made from the desk of an employee to a different country. The employee that sat at that desk was a national of that country and there was no known business being done in that country. So no need to know the content of the phone calls to realize that this was a huge red flag. And that employee was soon no longer working for that company.

So call patterns can be just as damning as listen in on the calls themselves, and in this age of big data such analysis can be performed trivially - that is if you have the data to work on in the first place.

Nobody is saying government officials can't have ephemeral conversations. What people are saying is that they cannot use ephemeral communications tools to do the job they are being paid by the people of their jurisdiction to do.

There's a world of difference there. When the governor is talking to his neighbor, friend, spouse, or family member, he's doing it as a private citizen. When he talks to people as the governor, the people have a justified interest in knowing exactly what he's saying and to whom. Transparency laws exist so we can hold public officials accountable for how well they do the work we're paying them to do.

Being a Missourian, the Greitens issue keeps coming up. He's under fire for several things.

The issue many (myself included) is that hes using the app in an official capacity to communicate with staff, and those communications since they are for a public office need to be recorded.

Now if he used it for personal use (since he likes to have affairs) I could care less if he uses that app. (not supporting or condoning cheating).

The guy is just nothing but trouble, and there is very nearly nothing a governor of a state needs to do to hide a communication from the public (its not like hes negotiating a sensitive item with a foreign government, even then it would at least be recorded somewhere).

I suspect he will not get re-elected and rightfully so. He is an embarrassment for our state.

I'm wouldn't say that I like that they are using this app, but in the end I don't see it as any different than a phone call or a meeting in the hall.

More and more we are seeing that lawsuits like these are being used more out of spite by extremist than for any real public benefit. Sunshine laws are great, but when you get to the point where representatives can't even discuss a conference while carpooling back, we have gone to far. We need to get beyond this political tit for tat and the media that uses it for click bait.

Being a Missourian, the Greitens issue keeps coming up. He's under fire for several things.

The issue many (myself included) is that hes using the app in an official capacity to communicate with staff, and those communications since they are for a public office need to be recorded.

Now if he used it for personal use (since he likes to have affairs) I could care less if he uses that app. (not supporting or condoning cheating).

The guy is just nothing but trouble, and there is very nearly nothing a governor of a state needs to do to hide a communication from the public (its not like hes negotiating a sensitive item with a foreign government, even then it would at least be recorded somewhere).

I suspect he will not get re-elected and rightfully so. He is an embarrassment for our state.

Pretty sure he's just a scumbag. Looked him up and he was a Democrat up until deciding to run for Governor in 2015, whereupon he swapped parties. And apparently he had an affair right around same time (while his wife was pregnant/nursing a newborn too), with allegations he's been blackmailing the woman to keep it secret.

Pretty sure he's just a scumbag. Looked him up and he was a Democrat up until deciding to run for Governor in 2015, whereupon he swapped parties. And apparently he had an affair right around same time (while his wife was pregnant/nursing a newborn too), with allegations he's been blackmailing the woman to keep it secret.

So yeah, great guy Missouri. What's your impeachment/recall process?

He is a jerk, but being a jerk, switching parties and having an affair are not impeachable offences. And as of now, the blackmailing is just he said/she said.

I'm wouldn't say that I like that they are using this app, but in the end I don't see it as any different than a phone call or a meeting in the hall.

I am quite certain NSA can and does collect and store some voice content, not that the governor's conversations would normally rise to their interest.

I suspect, and thought I read once, at least one of the major carriers also records and stores voice content for 'security', but I can't find a reference now. I'd bet they sure can if they want to, however.

Regardless, any electronic device bought and paid for by the government should be open to audit, inspection and review,..... in my opinion.

A corollary would be anyone who uses a government/company supplied device should use it like everything they say or tap might end up as a headline on ARS or any other site in the world.

There are several stories concerning the origin of the "Show-Me" slogan. The most widely known story gives credit to Missouri's U.S. Congressman Willard Duncan Vandiver for coining the phrase in 1899. During a speech in Philadelphia, he said:

"I come from a state that raises corn and cotton and cockleburs and Democrats, and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me."

So, should officials be required to tape all their phone conversations?

In short no. There is no requirement (that I am aware of for this). However, there would still be records of calls, metadata if you will regarding called parties and times.

OK, but what about the water cooler?

If a member of the public wishes to observe "water cooler chat" and provided that the original premise of Official Business is still true (despite us accidentally sliding into a stage implying otherwise) then they'd be allowed to observe and record it.

You could install a privacy partition (cough, app) around the water cooler, but not if you're using it to host your official open-doors meetings, which would be a weird and even suspicious thing to do.

Yes, I've done a bit of bait-and-switch in the that last bit. Point stands: Even if the proactive onus of Official Business transparency is limited, it's not gonna excuse deliberate concealment, water cooler desk phone or otherwise.

There's a muddier discussion about what qualifies as Official Business, but a blanket concealment isn't going to look good.